PEOPLE v. BODINE (2001)

 Defendant appeals from a judgment convicting him after a jury trial of manslaughter in the second degree (Penal Law § 125.15[1]), criminal possession of a weapon in the second degree (Penal Law former § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02[4]).   Defendant contends That County Court erred in rejecting his Batson claim regarding the prosecutor's exercise of a peremptory challenge (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   We disagree.   The prosecutor proffered a race-neutral explanation for the dismissal of that prospective juror, i.e., that she did not look the prosecutor “in the eye” when answering questions and her body language did not seem “to be one where she was being completely forthright” (see, People v. Diaz, 269 A.D.2d 766, 703 N.Y.S.2d 414, lv. denied 95 N.Y.2d 852, 714 N.Y.S.2d 3, 736 N.E.2d 864;  see also, People v. Hernandez, 75 N.Y.2d 350, 356-357, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. McCargo, 226 A.D.2d 480, 481, 641 N.Y.S.2d 322).   Defendant's contention that the prosecutor's reason was pretextual is unpreserved for our review because defendant failed to articulate to the court “any reason why he believed that the prosecutor's explanations were pretextual” (People v. Santiago, 272 A.D.2d 418, 707 N.Y.S.2d 906, lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 648, 739 N.E.2d 1153;  see, People v. Figueroa, 276 A.D.2d 561, 714 N.Y.S.2d 241, lv. denied 96 N.Y.2d 734, 722 N.Y.S.2d 801, 745 N.E.2d 1024;  People v. Thomas, 275 A.D.2d 234, 712 N.Y.S.2d 35, lv. denied 95 N.Y.2d 893, 715 N.Y.S.2d 385, 738 N.E.2d 789).

 The court did not err in ordering that the sentence imposed on the manslaughter count be consecutive to the concurrent sentences for criminal possession of a weapon.   The possession and the subsequent use were “ separate successive acts” (People v. Davis, 174 A.D.2d 369, 370, 571 N.Y.S.2d 4, lv. denied 83 N.Y.2d 966, 616 N.Y.S.2d 19, 639 N.E.2d 759, 84 N.Y.2d 867, 618 N.Y.S.2d 12, 642 N.Y.S.2d 331;  see, People v. Estwick, 266 A.D.2d 123, 124, 698 N.Y.S.2d 668, lv. denied 94 N.Y.2d 918, 708 N.Y.S.2d 358, 729 N.E.2d 1157).   The sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: